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A few weeks after the argument, at the close of its term in April, the Court entered an order that the writ of habeas corpus sought by Milligan and the others should be granted, but that opinions in the case would not be filed until the beginning of the next term in December 1866.
At that time, two opinions were filed: an opinion for the majority of the Court by Justice David Davis, and an opinion for four concurring Justices by Chief Justice Salmon P. Chase. All the Justices agreed that the trial of these defendants by a military commission was invalid. But they divided five to four on their reasoning. The five Justice majority basically adopted the position of the petitioners and held that a United States citizen not in the armed forces could not be tried before a military commission even in time of war if the civil courts were open for business. According to the majority, as the federal court in Indianapolis had been open for business throughout the war, these defendants should have been tried there, rather than before a military commission. The majority opinion relied on the definition of judicial power in Article III of the Constitution, and on the Sixth Amendment guarantee of the right to jury trial.
The concurring Justices held that a law passed by Congress in 1863 allowed those suspected of disloyal activity to be detained, but only until a Grand Jury had an opportunity to indict them. If the Grand Jury indicted, they were to be tried in the civil courts; if it did not, they were to be released. Thus, in effect, these Justices said Congress itself had ruled out trials of civilians by a military commission.
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It could easily be misconstrued that the second emphasized sentence is the opinion of the court. That would be incorrect. The second emphasized sentence is taken from the concurring opinion of four justices. Concurring opinions are NOT the opinion of the court. The majority opinion is the opinion of the court.
As CJ Rehnquist wrote, "The five Justice majority basically adopted the position of the petitioners and held that a United States citizen not in the armed forces could not be tried before a military commission even in time of war if the civil courts were open for business. According to the majority, as the federal court in Indianapolis had been open for business throughout the war, these defendants should have been tried there, rather than before a military commission. The majority opinion relied on the definition of judicial power in Article III of the Constitution, and on the Sixth Amendment guarantee of the right to jury trial."
Thus, the opinion of the Court was that it was violative of the Constitution to try a U.S. citizen civilian before a military commission, even in time of war, if the civil courts were open for business. This means Congress could not legally authorize such an action.
Five justices said the Lincoln administration violated Article III and Amendment VI of the Constitution. The five-justice majority made clear that even if the Congressional Act had authorized the Lincoln Administration to hold said military tribunal, they would have struck it down as unconstitutional.
What it comes down to is having honorable, good men running the process. If you don't have that, nothing else matters.
“In Mr. Lincoln’s message, we appreciate the calm thoughtfulness so different from the rowdyism we have been accustomed to receive from Washington. He is strong in the justice his cause and the power of his people. He speaks without acerbity even of the rebels who have brought so much calamity upon the country, but we believe that if the miscreants of the Confederacy -were brought to him today, Mr. Lincoln would bid them depart and try to be better and braver men in the future. When we recollect the raucous hate in this country toward the Indian rebels, "we feel humiliated that this 'rail splitter' from Illinois should show himself so superior to the mass of monarchical statesmen.
"Mr. Lincoln's brotherly kindness, truly father of his country, kindly merciful, lenient even to a fault, is made the sport and butt of all the idle literary buffoons of England. The day will come when the character and career of Abraham Lincoln will get justice in this country and his assailants will show their shame for the share they took in lampooning so brave and noble a man, who in a fearful crisis possessed his soul in patience, trusting in God. ‘Truly’, Mr. Lincoln speaks, 'the fiery trial through which we pass will light us down in honor or dishonor to the latest generation.' There is little doubt what the verdict of future generations will be of Abraham Lincoln.
"Before two years of his administration has been completed, he has reversed the whole constitutional attitude of America on the subject of Slavery; he has saved the territories from the unhallowed grasp of the slave power; he has purged the accursed institution from the Congressional District; he has hung a slave trader in New York, the nest of slave pirates; he has held out the right hand of fellowship to the negro Republicans of Liberia and Hayti; he has joined Great Britain in endeavoring to sweep the slave trade from the coast of Africa! There can be no doubt of the verdict of posterity on such acts as these. Within the light of the 'fiery trial' of which Mr. Lincoln speaks, another light shines clear and refulgent—the torch of freedom—to which millions of poor slaves now look with eager hope."
--From the London Spectator quoted in "Abraham Lincoln, The War Years", Vol. II, pp.331-333, by Carl Sandburg
Walt
"Gentlemen:
The resolutions of the Ohio Democratic Convention which you present me, together with your introductory and closing remarks, being in position and argument, mainly the same as the resolutions of the Democratic meeting at Albany, New-York, I refer you to my response to the latter, as meeting most of the points in the former. This response you evidently used in preparing your remarks, and I desire no more than that it be used with accuracy-- In a single reading of your remarks I only discovered one inaccuracy in matter which I suppose you took from that paper. It is when you say "The undersigned are unable to agree with you in the opinion you have expressed that the constitution is different in times of insurrection or invasion from what it is in time of peace & public security." A recurence to the paper will show you that I have not expressed the opinion you suppose-- I expressed the opinion that the constitution is different, in its application in cases of Rebellion or Invasion, involving the Public Safety, from what it is in times of profound peace and public security; and this opinion I adhere to, simply because, by the Constitution itself, things may be done in the one case which may not done in the other.
[Note 15 See Abraham Lincoln to Erastus Corning and others, [June] 1863.]
...You say "Expunge from the constitution this limitation upon the power of Congress to suspend the writ of Habeas Corpus, and yet the other guarranties of personal liberty would remain "unchanged" Doubless if this clause of the constitution, improperly called, as I think, a limitation upon the power of Congress, were expunged, the other guarranties would remain the same; but the question is, not how those guaranties would stand, with that clause out of the Constitution, but how they stand with that clause remaining in it, -- in cases of Rebellion or Invasion, involving the public Safety-- If the liberty could be indulged, of expunging that clause letter & spirit, I really think the Constitutional argument would be with you-- My general view on this question was stated in the Albany response, and hence I do not state it now. I only add that, as seems to me, the benefit of the writ of Habeas Corpus, is the great means through which the guarranties of personal liberty are conserved, and made available in the last resort; and coroborative of this view, is the fact that Mr. V. in the very case in question, under the advice of able lawyers, saw not where else to go but to the Habeas Corpus-- But by the Constitution the benefit of the writ of Habeas Corpus itself may be suspended when in cases of Rebellion or Invasion the public Safety may require it.
You ask, in substance, whether I really claim that I may over-ride all the guarrantied rights of individuals, on the plea of conserving the public safety -- when I may choose to say the public safety requires it-- This question, divested of the phraseology calculated to represent me as struggling for an arbitrary personal prerogative, is either simply a question who shall decide, or an affirmation that nobody shall decide, what the public safety does require, in cases of Rebellion or Invasion-- The constitution contemplates the question as likely to occur for decision, but it does not expressly declare who is to decide it. By necessary implication, when Rebellion or Invasion comes, the decision is to be made, from time to time; and I think the man whom, for the time, the people have, under the Constitution, made the Commander-in-Chief, of their Army and Navy, is the man who holds the power, and bears the responsibility of making it--. If he uses the power justly, the same people will probably justify him; if he abuses it, he is in their hands, to be dealt with by all the modes they have reserved to themselves in the Constitution--17
The apparent earnestness with which you insist that persons can only, in times of rebellion, be lawfully dealt with, in accordance with the rules for criminal trials and punishments in times of peace, induces me to add a word to what I said on that point, in the Albany response. You claim that men may, if they choose, embarrass those whose duty it is, to combat a giant rebellion, and then be dealt with in turn, only as if there was no rebellion. The constitution itself rejects this view. The military arrests and detentions, which have been made, including those of Mr. V. which is are not different in principle from the others, have been for prevention, and not for punishment -- as injunctions to stay injury, as proceedings to keep the peace -- and hence, like proceedings in such cases, and for like reasons, they have not been accompanied with indictments, or trials by juries, nor, in a single case by any punishment whatever, beyond what is purely incidental to the prevention. The original sentence of imprisonment in Mr. V.'s case, was to prevent injury to the military service only, and the modification of it was made as a less disagreeable mode to him, of securing the same prevention--
I am unable to perceive an insult to Ohio in the case of Mr. V. Quite surely nothing of the sort was or is intended. I was wholly unaware that Mr. V. was a candidate for the democratic nomination for Governor at the time of his arrest until informed by yourselves reading the resolutions of the convention.18 I am grateful to the State of Ohio for many things, especially for the brave soldiers and officers she has given in the present national trial, and very especially for giving birth to Generals Rosecrans and Grant.19
[Note 18 Lincoln's several revisions of this sentence, together with Nicolay's penciled efforts to improve upon them, make the manuscript somewhat confusing. Lincoln seems to have first written: "I was wholly unaware that Mr. V. was a candidate for the democratic nomination of Governor until informed by yourselves yesterday--" He then sought to clarify this by inserting "at the time of his arrest" and by expanding "informed by yourselves yesterday" to "informed by yourselves reading the resolutions of the convention," referring to his interview with the delegation on June 25. The penciled changes all seem to be by Nicolay, the most obvious being his repositioning the phrase "at the time of his arrest." This and Nicolay's other emendations, which can be seen in the accompanying image of the manuscript, have been ignored in the transcription.]
[Note 19 In the manuscript, John G. Nicolay has stricken with pencil the words "and very especially for giving birth to Generals Rosecrans and Grant" and substituted "to the armies of the Union."]
You claim, as I understand, that according to my own position in the Albany response, Mr. V. should be released; and this because, as you claim, he has not damaged the military service, by discouraging Enlistments, encouraging desertions, or otherwise; and that if he had, he should have been turned over to the civil authorities under recent acts of congress. I certainly do not know that Mr. V. has specifically, and by direct language, advised against Enlistments, and in favor of desertion, and resistance to drafting; We all know that combinations, armed in some instances, to resist the arrest of deserters, began several months ago; and that more recently the like has appeared in resistance to the enrolment preparatory to a draft; and that quite a number of arrests assassinations have occurred from the same animus. These had to be met by military force, and this again has led to bloodshed and death. And now under a sense of responsibility more weighty and enduring than any which is merely official, I solemnly declare my belief that this hindrance, of the military, including maiming and murder, is due to the course in which Mr. V. has been engaged, in a greater degree than to any other cause; and is due to him personally, in a greater degree than to to any other one man. These things have been notorious, known to all, and of course known to Mr. V. Perhaps I would not be wrong to say they originated with his special friends and adhereants. With perfect knowledge of them, he has frequently, if not constantly made speeches, in Congress, and before popular assemblies; and if it can be shown that, with these things staring him, in the face, he has ever uttered a word of rebuke, or counsel against them, it will be a fact greatly in his favor with me, and one of which, as yet I am totally ignorant. When it is known that that the whole burthen of his speeches has been to stir up men against the prossecution of the war, and that in the midst of resistance to it, he has not been known, in any instance, to counsel against such resistance, it is next to impossible to repel the inference that he has counselled directly in favor of it-- With all this before their eyes the convention you represent have nominated Mr. V. for Governor of Ohio; and both they and you, have declared the purpose to sustain the national Union by all constitutional means. But, of course, they and you, in common, reserve to yourselves to decide what are constitutional means; and, unlike the Albany meeting, you omit to state, or intimate, that in your opinion, an army is a constitutional means of saving the Union against a rebellion: or even to intimate that you are conscious of an existing rebellion being in progress with the avowed object of destroying that very Union. At the same time your nominee for Governor, in whose behalf you appeal, is known to you, and to the world, to declare against the use of an army to suppress the rebellion. Your own attitude, therefore, encourages desertion, resistance to the draft and the like, because it teaches those who incline to desert, and to escape the draft, to believe it is your purpose to protect them, and to hope that you will become strong enough to do so. After a short personal intercourse with you gentlemen of the Committee, I can not say I think you desire this effect to follow your attitude; but I assure you that both friends and enemies of the Union look upon it in this light. It is a substantial hope, and by consequence, a real strength to the enemy-- If it is a false hope, and one which you would willingly dispel, I will make the way exceedingly easy-- I send you duplicates of this letter, in order that you, or a majority of you, may if you choose, indorse your names upon one of them, and return it thus indorsed to me, with the understanding that those signing, are thereby committed to the following propositions, and to nothing else.
1 That there is now a rebellion in the United States, the object and tendency of which is to destroy the national Union; and that in your opinion, an army and navy are Constitutional means for suppressing that rebellion--
2. That no one of you will do any thing which in his own judgment, will tend to hinder the increase, or favor the decrease, or lessen the efficiency of the army or navy, while engaged in the effort to suppress that rebellion; and,
3. That each of you will, in his sphere, do all he can to have the officers, soldiers, and seamen of the army and navy, while engaged in the effort to suppress the rebellion, paid, fed, clad, and otherwise well provided and supported--
And with the further understanding that upon receiving the letter and names thus indorsed, I will cause them to be published, which publication shall be ipso facto within itself, a revocation of the order in relation to Mr. V.
It will not escape observation that I consent to the release of Mr. V. upon terms, not embracing any pledge from him, or from others as to what he will, or will not do. I do this because he is not present to speak for himself, or to authorize others to speak for him; and because I should expect that on his returning, he would not put himself practically in antagonism with the position of his friends-- But I do it chiefly because I thereby prevail on other influential gentlemen of Ohio to so define their position, as to be of immense value to the Army -- thus more than compensating for the consequences of any mistake in allowing Mr. V. to return; and so that, on the whole, the public safety will not have suffered by it. Still, in regard to Mr. V. and all others, I must hereafter as heretofore, do so much as the public safety may seem to require---"
Walt